In re Conservatorship of Tapp, 012221 TNCIV, W2020-00216-COA-R3-CV

Docket Nº:W2020-00216-COA-R3-CV
Opinion Judge:Carma Dennis McGee, Judge
Party Name:IN RE CONSERVATORSHIP OF MARY ANN TAPP
Attorney:Olen M. Bailey, Jr. and Jared W. Eastlack, Memphis, Tennessee, for the appellants, Judy Bishop, David Simmons, Charles R. Simmons, and Linda S. Taylor. William H. Shackelford, Jr., Jackson, Tennessee, for the appellees, John E. Simmons and Thomas M. Minor.
Judge Panel:Carma Dennis McGee, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.
Case Date:January 22, 2021
Court:Court of Appeals of Tennessee

IN RE CONSERVATORSHIP OF MARY ANN TAPP

No. W2020-00216-COA-R3-CV

Court of Appeals of Tennessee, Jackson

January 22, 2021

Session October 7, 2020

Appeal from the Chancery Court for Fayette County No. 16848 William C. Cole, Chancellor

This appeal stems from a petition to remove a co-conservator for a person with a disability. Several years ago, the ward's brother and her personal attorney were appointed as co-conservators of the ward's person and estate. Subsequently, the ward's remaining siblings filed this action to remove the brother as a co-conservator, alleging that the brother had failed to act in the best interest of the ward. After a hearing on the petition, the trial court dismissed the petition to remove the brother as a co-conservator and awarded the co-conservators attorney's fees. Some of the siblings appealed the trial court's award of attorney's fees. We reverse the trial court's award of attorney's fees and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded.

Olen M. Bailey, Jr. and Jared W. Eastlack, Memphis, Tennessee, for the appellants, Judy Bishop, David Simmons, Charles R. Simmons, and Linda S. Taylor.

William H. Shackelford, Jr., Jackson, Tennessee, for the appellees, John E. Simmons and Thomas M. Minor.

Carma Dennis McGee, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny W. Armstrong, J., joined.

OPINION

Carma Dennis McGee, Judge

I.

Facts &Procedural History

On November 18, 2015, a petition to appoint co-conservators of the person and estate of Mary Ann Tapp ("the Ward") was filed in the Chancery Court for Fayette County.1In the petition, John E. Simmons ("John")2 and Thomas M. Minor are listed as petitioners. John was a brother of the Ward, and Mr. Minor was the long-time personal attorney of the Ward. Also listed as petitioners were the Ward's seven remaining siblings: Judy Bishop, Sarah S. Manscoe, David Simmons ("David"), Charles R. Simmons ("Charles"), Jerry Simmons, Bettye Brooks, and Linda S. Taylor (collectively "the Siblings"). The petition indicated that the Siblings were separately represented by attorney William S. Rhea. The Ward was widowed and had no children. The petition stated that the Ward was a resident of Fayette County, Tennessee, and that she maintained a separate residence in Haywood County, Tennessee.

At the time the petition to appoint co-conservators was filed, the Ward was 73 years old. In the petition, the parties alleged that the Ward was disabled and had been diagnosed with dementia. Because of her disability, the parties asserted that she needed assistance with her daily activities, with her business affairs, and with preserving her estate. To help care for the Ward, they petitioned the trial court to appoint John and Mr. Minor as the co-conservators of the Ward's person and estate. They also requested that the appointment of a guardian ad litem be waived. The parties asserted that, because Mr. Minor was the Ward's personal attorney for over 25 years, the waiver of a guardian ad litem was in the best interest of the Ward. The petition was supported by a physician's report and an affidavit of Dr. Jack Pettigrew, the Ward's primary care physician. These materials indicated that Dr. Pettigrew personally examined the Ward within 90 days of the petition being filed and that in his opinion, due to her poor mental condition, the Ward was unable to care for herself.

On November 19, 2015, the day after the petition to appoint co-conservators was filed, the trial court granted the petition. John and Mr. Minor were appointed as co-conservators of the Ward's person and estate. As co-conservators, the trial court vested them with all of the rights listed in Tennessee Code Annotated section 34-3-107(a)(2).

Over two years after John and Mr. Minor were appointed as co-conservators, the Siblings filed a petition to remove John as a co-conservator. In their petition to remove him, they asserted that John failed to perform his duties and failed to act in the best interest of the Ward. Specifically, they alleged several examples of misconduct by John, including isolating the Ward from other family members, disrupting visits between the Siblings and the Ward, failing to provide proper nourishment, and failing to provide suitable care. The Siblings asked the trial court to remove John as a co-conservator and to appoint another sibling, Ms. Bishop, as his successor.

On July 31 and September 11, 2018, the trial court heard the petition to remove John as co-conservator. Six of the Siblings testified on why John should be removed as a co-conservator.3 The trial court also heard testimony from the Ward's caregivers; Dr. Pettigrew; Mr. Minor; and Ruthann Shelton, the Executive Director of Alzheimer's and Dementia Services of Memphis. Ms. Shelton's testimony focused on an Alzheimer's patient's need for a regular routine with limited visitors and disruptions.

At the conclusion of the hearing on September 11, 2018, the trial court rendered an oral ruling. In its oral ruling, the trial court explained that it was dismissing the petition to remove John as a co-conservator. The court also awarded attorney's fees to John and Mr. Minor as the "prevailing parties."

On January 13, 2020, the trial court entered its final written order, dismissing the petition to remove John as a co-conservator.4 In the written order, the court found that the Siblings did not present sufficient evidence to justify removing John as a co-conservator. The court noted that Ms. Shelton, who testified that John appeared to be doing a good job as a co-conservator, was a credible witness. Despite its decision to dismiss the petition, the court concluded that it was in the best interest of the Ward to maintain a relationship with the Siblings. As a result, it ordered the parties to continue to follow a bi-weekly visitation schedule between the Siblings and the Ward. As the prevailing parties, the trial court awarded John and Mr. Minor $33, 424.34 in attorney's fees under Tennessee Code Annotated sections 34-3-107(a)(2)(P) and -108(f).

Several of the Siblings (Ms. Bishop, David, Charles, and Ms. Taylor) timely appealed.5

II.

Issues Presented

The Siblings raise a single issue on appeal, which has been copied verbatim: Whether the Trial Court had authority to award attorney's fees to counsel for the Co-Conservators.

For the reasons stated herein, we reverse the award of attorney's fees and remand.

III.

Standard of Review

In a civil case where the trial judge was the finder of fact, factual findings are reviewed de novo and are presumed correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010). Questions of law are reviewed do novo but with no presumption of correctness. In re Sidney J., 313 S.W.3d 772, 774 (Tenn. 2010).

IV.

Analysis

A. Subject Matter Jurisdiction

As a means of attacking the trial court's decision to award attorney's fees, the Siblings argue that the trial court never had subject matter jurisdiction to hear the petition to appoint co-conservators. They argue that at the time the initial petition was filed, in November 2015, the Ward was a resident of Haywood County, rather than Fayette County. Thus, the Siblings argue that the initial conservatorship petition should have been filed in Haywood County and that the orders entered by the trial court in this conservatorship proceeding are void for lack of subject matter jurisdiction.

"Subject matter jurisdiction refers to a court's authority to adjudicate a particular case or controversy and 'depends on the nature of the cause of action and the relief sought.'" In re Baby, 447 S.W.3d 807, 837 (Tenn. 2014) (quoting Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012)). "Subject matter jurisdiction relates to a court's authority to adjudicate a particular type of case or controversy brought before it." In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012) (citing Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)). Parties cannot waive subject matter jurisdiction, nor can they confer it on a trial or appellate court. See In re Baby, 447 S.W.3d at 837; In re Estate of Trigg, 368 S.W.3d at 489. Orders and judgments entered by courts without subject matter jurisdiction are void. In re Estate of Trigg, 368 S.W.3d at 489.

In conservatorship proceedings, venue is treated as jurisdictional. In re Conservatorship of Ackerman, 280 S.W.3d 206, 210 (Tenn. Ct. App. 2008) ("In re Ackerman"). Tennessee Code Annotated section 34-3-101(b) states, "[a]n action for the appointment of a conservator shall be brought in the county of residence of the alleged person with a disability." (Emphasis added). "Accordingly, . . . trial courts should not exercise jurisdiction over the person or property of [a person with a disability] who are not residents of their geographic area." In re Ackerman, 280 S.W.3d at 210 (citing In re Conservatorship of Clayton, 914 S.W.2d 84, 89 (Tenn. Ct. App. 1995) ("In re Clayton")). Previously, this Court stated that under section 34-3-101(b), the term "county of residence" means the person's legal residence or domicile. In re Clayton, 914 S.W.2d at 91. Meaning, whether a trial court has jurisdiction to hear a petition to appoint a conservator depends on the domicile of the person who is the subject of the petition.

The difference between a person's residence and domicile may sometimes be subtle but it is crucial for purposes of determining subject matter jurisdiction. "[A] person may have more than one residence but may have only one domicile or legal residence." In re Ackerman, 280 S.W.3d at 210...

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